Unless you have a court order or written agreement stating otherwise, what you've described above it isn't "kidnapping" unless you intend it to be. That said, I would expect your husband to seek a court order compelling you to return, and perhaps also seeking custody of your son. In that case, your impromptu absence from the state won't look good for you. Assuming that when you say "leave" your husband, you mean permanently, a better plan would be to consult with a local attorney immediately so you can fully review all your rights, options and obligations, and then make a plan that is likely to succeed. Sometimes a telephone consult will be enough to get started. You can find attorney's contact info below or by searching among the profiles here on AVVO. Good luck!
Ms. Brown may be reached at 718-878-6886 during regular business hours, or anytime by email at: firstname.lastname@example.org. All of Ms. Brownâ€™s responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual, and her response to the question above is not legal advice and it does not create an attorney-client relationship. Ms. Brown is licensed to practice law in New York. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state.
I recommend that you seek an order of custody from Family Court, or file for a divorce in Supreme Court. You state that the child's father is "always angry." He will likely try to bring the child (and possibly you) back to New York. Once you have an Order of custody, you can seek permission to relocate. Otherwise, the father will claim that you are interfering with his parental rights. Call (516) 368-2484 for a comprehensive case evaluation.
Both parties have an equal right to custody unless there is a court order stating otherwise. So while you will not "get in trouble" or get arrested for kidnapping, since you presumably may return, the court will not likely favor your approach if in fact there are no facts that would support denying the father access to his children. Tread carefully in this area as your conduct not only affects the outcome of a later child custody area, it also shapes your childrens' chances at a positive and successful adulthood. We as adults all too often forget that our actions impact our children directly. So just make sure that your actions won't hurt the kids. And almost always, denying ANY access is harmful to kids. Are there ways you can allow access but safeguard the kids?
When there is no custody order in place, neither party can be charged with kidnapping.
There is nothing stopping either parent from moving. I AM NOT ADVISING ON YOUR SPECIFIC CASE, because every case is different, but I will outline some possibilities:
If a parent/mother moves, and the parent/father knows where the mother is, and the father DOESN'T OBJECT, once the mother is in the new state for six months, the new state would be in charge of any custody cases and the mother and child would likely be able to stay in the new state. This is most likely if the mother only moves to, say, NJ or CT, or somewhere where the father visits because he has relatives, but it always depends on the facts of the case and the personalties of the parents and the nature of their relationship.
If the mother moves, and the father knows where the mother is, he may decide to file in the NY court to try to make the mother come back or to get CUSTODY. Depending on the mother's reasons for moving and how far away the mother moved and other specific facts of the case, the court MAY tell the mother she must come back or at least send the child back to the father. Again, it depends on the facts. Often, it can depend on how difficult it will be for the father to visit the child in the new state. Some parents do not want to take a chance of moving and then being forced to move back, or being told if they don't move back the other parent should have custody. It is a personal decision.
If the mother moves, and the father does not know where the mother is, he can go to NY Court and file for custody and a "writ" demanding the mother bring the child back. He may be granted temporary custody immediately, even though the child is with the mother. This is obviously a big risk.
If the mother goes to court before she moves, the court may say that she cannot take the child out of the state (or even the city). But if the mother has a good plan for moving and good reasons, she would present those to the court. The court will not only consider custody, but also will set up a formal visitation schedule. Some mothers like to have a formal visitation schedule immediately when they separate. Others do not. It is a personal choice.
The above is some general information about the possible situations. There are other situations and nothing is certain.
These decisions are very difficult to make, and are very personal. Each course of action has some risks and some possible benefits. I strongly urge you to try to talk to a lawyer about your specific situation. If your husband is always angry and you are scared of him in any way, there may be a domestic violence program that can provide you with advice or legal services.
Good luck to you and your son.
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